Condolences and strikes: Too often, too selective

Time is very limited in the judicial system. It is overburdened with cases, often moving at a snail's pace. In the midst of this, unnecessary obstructions to the system should be avoided as much as possible. However, lawyers, as officers of the court, fail in their duty to do that. Two modes by which they do this are condolences and strikes.

Both of these reasons have been increasingly abused, further hampering the proper functioning of the judicial system. Condolences are being instituted far too often, while the legitimate nature of strikes has been blighted by selective use and absurd reasons. Lawyers have called for strikes for reasons like shraadh, Agrasen Jayanti, kavi sammelan and once because it was too hot.

The number of working days lost is not less either. For example, the Supreme Court, citing the 266th Law Commission Report, noted that between 2012 and 2016, advocates were on strike for 455 days (on an average 91 days per year) in Dehradun District and in Haridwar district for 515 days (about 103 days per year).

Court dates are often determined two to three months in advance. The litigant waits with suspense for his next date. To tell him a day before his case that it will not be heard due to a condolence is an injustice. In some cases, lawyers lose their day’s earnings. Overall, it’s a loss to the system. For example, the practice in the Jharkhand High Court is to hold condolence references on Friday after lunch. As per the roster, Friday is the only day fixed for PIL hearings so the already limited time for public interest matters gets further shortened.

I am yet to come across a profession that holds condolences for their fellow colleagues as often as lawyers do. A condolence (in some places referred to as ‘reference’) is held when lawyers boycott work to mourn the death of a fellow lawyer or judge. This has to mandatorily be followed by all lawyers in that jurisdiction, without protest. The abstinence can either be for a full day or for particular hours of a day.

For whom the abstinence has to be called, and for how long, the office bearers of the Bar have complete discretion. Sometimes condolences have been held even in view of the death of a family member of an advocate.

There is no law allowing such abstinences. In fact, courts have called these illegal. The apex court in 2020 came down heavily on unreasonable strikes and condolences in the Dehradun District Bar Association case. In Hussain v. Union of India (2017), the Court disapproved of the practice, observing:

"One other aspect pointed out is the obstruction of court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work after condolence references. Such suspension of work or strikes is clearly illegal and it is high time that the legal fraternity realises its duty to the society which is the foremost. Condolence references can be once in a while periodically say once in two/three months and not frequently.”

In another case, the Allahabad High Court also criticised the practice, stating,

"The Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts."

In some cases, High Court judges have even requested the lawyers to fix a time to strike when less work will be hampered.

Yet, the practice goes on unchecked. Is it really necessary to prove our respect by abstaining from work? Shouldn't we continue with our work in the memory of our colleagues?

Unlike condolences, I believe strikes are sacred for they are a democratic form of protest against arbitrary action. In genuine cases, a strike becomes necessary, as collective action puts a check on the arbitrary use of power. For example, the Delhi High Court Bar Association was right to call for a strike when Justice S Muralidhar’s transfer order was effected the same day he criticized the Central government over biased action in a hate speech case, as it put the independence of the judiciary at stake.

In the backdrop of the Andhra Pradesh High Court Bar Association strike against the transfer of its Chief Justice, eminent civil rights advocate KG Kannabiran justified the strike by stating,

"The judicial institution and the legal profession should not learn to cope with this insane exercise of power, but to discipline the exercise of power and restore sanity. A subordinated judicial system will only lend legitimacy to arbitrariness and brutality. It is this inchoate perception of things to come that is driving lawyers to collective action such as strikes."

When strikes are called to address issues that might not concern the litigant directly. but are to protect the institution, they are justified. However, even in these situations, ways can be carved out to lessen the damage on the litigants. For example, matters pertaining to life, liberty and demolitions can be allowed as exceptions during the strike.

Strikes have increasingly been called for avoidable reasons, such as the conviction of a lawyer in an assault case of a lady lawyer. Such solidarity for a fellow member of the Bar was missing when raids happened in the offices of human rights lawyers or on their arrest, showcasing the selective application of strikes.

In the aftermath of several incidences of subversion of the judiciary, bar associations hardly came out with statements condemning such actions. There were no strikes/condolences when raids happen in the offices of civil rights lawyers or when they were arrested.

For example, the office of Mehmood Pracha was raided in the aftermath of an anti-CAA protest. Last year, in Telangana, the National Investigation Agency (NIA) raided the offices of civil rights lawyers. In 2018, human rights lawyers Sudha Bharadwaj and Surender Gadling were arrested. There ought to have been strikes over these incidents, as it affected the judicial system. The Bar needs to use its power of collective action to protect the institution rather than wasting it on condolences and useless strikes.